Re: Electronic locksmiths are watching you (Belgium's ban onPGP)

At 11:22 AM 3/31/96 -0500, Jean-Francois Avon (JFA Technologies, QC, Canada) wrote:
>-----BEGIN PGP SIGNED MESSAGE-----
>
>Dave Del Torto <ddt@lsd.com> wrote:
>
>>At 1:25 am 3/30/96, jim bell wrote:
>>>We should be particularly suspicious of any hint of a pan-European ban or
>>>control of encryption, because that is exactly the kind of development that
>>>could usher in a secretly-negotiated treaty that might be argued to be
>>>binding on the public.               [elided]
>
>>Cypherpunks like Jim need to keep doing their homework before they make
>>such quasi-factual statements.
>
>
>Jim seems to analyse a situation in terms of broad principles, 
>while Dave seems to focus more on specifics that would disprove Jim.
>
>I agree with the Dave's last phrase in the sense that our models of reality
>should indeed be rooted in reality.

I hope by now you've seen my reply about the treaty issue.  I wasn't 
particularly focussing on the question of what Europe will do qua Europe, 
but how the treaty issue could be abused in the US.  Here is the section of 
the US Constitution which is relevant, and which I mentioned  by reference before:

Article VI
...

This Constitution, and the Laws of the United States which shall be made in 
Pursuance thereof; and all Treaties made, or which shall be made, under the 
Authority of the United States, shall be the supreme Law of the land; and 
the Judges in every State shall be bound thereby, any Thing in the 
Constituion or Laws of any State to the Contrary notwithstanding.
...


I do not believe that this section was intended to mean that the _citizens_ 
of the US are bound by treaty obligations; That would be illogical, treaties 
are agreements between governments. Treaties are inherently intended to 
govern relations with foreign countries, not legal or political 
circumstances within a particular country.  Treaties may AFFECT citizens, 
such as extradition treaties, immigration/emigration treaties, and passport 
requirements, but the citizen doesn't "agree" with them. 

That's evidenced by the fact that treaties are ratified by only the US 
Senate, the body with two Senators from each state.  (The House has 
proportional representation, based on the population of each state.)  The 
intent, I suggest, was that treaties were supposed to be interpreted as 
applying to the country, while laws applied to the individual.

(Since you're Canadian, and for other non-US readers, I should point out 
that when the US Constitution was being drafted and debated, citizens were 
strongly loyal to their state, not the country as a whole, and there was a 
debate concerning how the representation in the Federal legislature should 
be divvied up.  Obviously, large states wanted proportional representation, 
small states wanted "n-votes-per-state."  The compromise was to have two 
houses, one of each kind of system. (House=proportional, Senate=2 votes per state.))  
Laws have to be passed by both houses to become valid; treaties, on the other hand, 
only need to be ratified by the Senate.  

In any case, since laws can be declared unconstitutional I think it's 
implicit that there can be such a thing as an "unconstitutional treaty," or 
at least one if declared to be binding on the citizens would be in violation 
of the Constitution.  If, for example, the US government decided that it 
wanted to take away free speech rights from its citizens, to name an 
obviously fantastic example, it could arguably write a treaty with, say, 
Mexico, "agreeing" that free-speech rights will not apply to the citizens of 
each country.  

While in practice such an extreme example would never fly and would not be 
tested (fortunately!) I have read that this section is opportunistically 
interpreted as if a treaty can be assumed to bind the citizens and not 
merely the government.  I believe there was a treaty in the middle 1960's called 
something like "Single Issue Treaty on Narcotics" which led directly to a 
massive re-write of the drug laws in the US.  In view of the fact that 
today, probably 70% of the inmates in US prisons are there on drug charges, 
it is obvious that this treaty had a long-lasting internal effect, far 
beyond what a person might have expected at the time.

Whether or not this interpretation could still work in today's changed 
political climate, I don't know, but it's obvious that portions of the US 
government would dearly love to control encryption in particular and 
communications in general.  Since telecommunications is one of those 
subjects that is covered by past treaties, and can be expected to be covered 
by future ones, I believe that American citizens need to be particularly 
concerned about the government sneaking in laws in the "back door," made by 
treaty, as opposed to the "front door", made by both the House and Senate 
and subject to Presidential veto.  (Not that I have much respect for the 
latter, either, but that system is a bit easier to control.)

If anything, I think there needs to be an explicit prohibition written into 
law prohibiting the enforcement of anti-crypto treaty terms on the citizens, 
or even better a law requiring that all future telecommunications treaties 
to which the US is a party not contain any regulations or restrictions on 
crypto.  But I'm not hopeful about this.

>But considering that in most european country, you are recognized guilty 
>unless proven innocent, it is only non-contradictory to arrive at Jim's
>conclusions.  The basic psycho-epistemology at work there is implying that.

There is probably much about Europe which is superior to the US, but they do 
have a problem with social and political stratification given their long history.

Jim Bell
jimbell@pacifier.com

Following my new policy on Jim Bell posts, the below represents my new 
form of reply.  These 'terse' replies should cut down on bandwidth and 
still serve as some basic protection to the list readership as to the 
mis and dis-information which eminates in quantity from Mr. Bell's 
account.  Those parties interested in a more detailed discussion, aside 
of course Mr. Bell, should ask for clarification where they feel it 
necessary and I will then expound on my points.

On Sun, 31 Mar 1996, jim bell wrote:

> I hope by now you've seen my reply about the treaty issue.  I wasn't 
> particularly focussing on the question of what Europe will do qua Europe, 
> but how the treaty issue could be abused in the US.  Here is the section of 
> the US Constitution which is relevant, and which I mentioned  by reference before:
> 
> Article VI
> ...
> 
> This Constitution, and the Laws of the United States which shall be made in 
> Pursuance thereof; and all Treaties made, or which shall be made, under the 
> Authority of the United States, shall be the supreme Law of the land; and 
> the Judges in every State shall be bound thereby, any Thing in the 
> Constituion or Laws of any State to the Contrary notwithstanding.
> ...
> 
> 
> I do not believe that this section was intended to mean that the _citizens_ 
> of the US are bound by treaty obligations;

You are incorrect.

 That would be illogical, treaties 
> are agreements between governments. Treaties are inherently intended to 
> govern relations with foreign countries, not legal or political 
> circumstances within a particular country.  Treaties may AFFECT citizens, 
> such as extradition treaties, immigration/emigration treaties, and passport 
> requirements, but the citizen doesn't "agree" with them. 

You are, again, incorrect.

> That's evidenced by the fact that treaties are ratified by only the US 
> Senate, the body with two Senators from each state.  (The House has 
> proportional representation, based on the population of each state.)  The 
> intent, I suggest, was that treaties were supposed to be interpreted as 
> applying to the country, while laws applied to the individual.

You need to study the history of this structural decision.

> (Since you're Canadian, and for other non-US readers, I should point out 
> that when the US Constitution was being drafted and debated,

[Yadda yadda yadda.]

> In any case, since laws can be declared unconstitutional I think it's 
> implicit that there can be such a thing as an "unconstitutional treaty," or 
> at least one if declared to be binding on the citizens would be in violation 
> of the Constitution.  If, for example, the US government decided that it 
> wanted to take away free speech rights from its citizens, to name an 
> obviously fantastic example, it could arguably write a treaty with, say, 
> Mexico, "agreeing" that free-speech rights will not apply to the citizens of 
> each country.  

You need to study the difference between non-executing and self-executing 
treaties.  It is left as an exercise to the reader to determine why, in 
this context, what Mr. Bell suggests would not work.

> merely the government.  I believe there was a treaty in the middle 
1960's called 
> something like "Single Issue Treaty on Narcotics" which led directly to a 
> massive re-write of the drug laws in the US.  In view of the fact that 
> today, probably 70% of the inmates in US prisons are there on drug charges, 
> it is obvious that this treaty had a long-lasting internal effect, far 
> beyond what a person might have expected at the time.

Se above reference to self-executing treaties as to why Mr. Bell is again 
passing the wrong mark.

> Whether or not this interpretation could still work in today's changed 

[Yadda yadda yadda].

> Jim Bell
> jimbell@pacifier.com

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